Holding

Disciplinary jurisdiction under Section 35 of the Advocates Act cannot be exercised against a non‑practising advocate for misconduct committed while he was not practising law.

Summary

The case concerned a former advocate who had become a judicial officer, was dismissed for corruption, and later sought to resume legal practice. After his resumption, members of the local bar objected and the Bar Council of India initiated disciplinary proceedings under Section 35 of the Advocates Act, alleging misconduct. The Supreme Court examined whether Section 35 could be invoked against a non‑practising advocate for misconduct committed while he was not practising law. It held that the statutory scheme requires the alleged misconduct to have been committed while the advocate was practising and on the State Bar Council roll. Since the respondent’s alleged misconduct occurred during his judicial service, when his licence was suspended, Section 35 did not apply. Consequently, the disciplinary complaint was not maintainable and the Bar Council of India's dismissal of the case was upheld. The appeal was dismissed.

Issues considered

Whether Section 35(1) of the Advocates Act, 1961 can be invoked against an advocate who was not practising at the time of the alleged misconduct.
Whether misconduct committed by a former advocate while serving as a judicial officer falls within the ambit of 'professional or other misconduct' under Section 35.
Whether Rule 5 of the Bar Council of India Rules and Section 24‑A of the Advocates Act affect the jurisdiction to discipline a non‑practising advocate.

Legislation cited

Advocates Act, 1961s. 17, s. 2(1)(a), s. 2(1)(k), s. 2(1)(n), s. 24-A, s. 26A, s. 33, s. 35, s. 49, s. 6
Bar Council of India Rules, 1975s. Chapter III, Rule 5
Prevention of Corruption Act, 1947s. 5(1)(e)

Subjects

Advocates ActSection 35disciplinary proceedingsprofessional misconductother misconductnon‑practising advocateBar Council of IndiaRule 5judicial officercorruption

Judgment

\

~

BALDEV SINGH DHINGRA AND OTHERS A
v.
MADAN LAL GUPTA AND OTHERS

FEBRUARY 4, 1999
).
[S.B. MAJMUDAR AND R.P. SETHI, JJ.] B
r

Advocates Act, 1961 :

Sections 2(1)(a), 2(1)(k), 2(1)(n), 6, 17, 26A 3~Disciplinary Proceed-
ings under section 35 against practising Advocate-Charge of misconduct
while acting as a Judge-Licence to practice su"endered-Name on the roll
c
of the State Bar Council-Advocate not practising at the time of miscon-
duct-No allegation of misconduct after resumption of practice-Held, Dis-
ciplinary jurisdiction under section 35 cannot be invoked for misconduct
allegedly committed by a non-practising Advocate.
-..... D
S.35---Disciplinary proceedings-Invocation of-WJ1ert-fleld, S. 35 can
be invoked against a practising Advocate for professional or any other mis-
conduct committed in his professional capacity.

Bar Council of India Rules, 1975.
E
Chapter III, Rule 5'-Practising Advocate ceases to practice-Licence to
practice su"endered-Name continues on the roll of the State Bar Coun-
cil-Held, cannot be said to be an Advocate practising under the Advocates
4.ct, 1961.

Rule 5-Permission to resume practice-No disqualification incu"ed F
under section 24-A, Advocates Act-Held, non-practising Advocate cannot be
refused permission to resume practice.

Words & PhraseJ~'Professional misconduct', 'Other misconduct',
'Practising Advocate', 'Non-practising Advocate'-Meaning of in the context
G
-, . of 1dvocates Act, 1961.
~

Respondent No. 1 was enrolled as an Advocate in 1963 by the Bar
Council of Punjab and Haryana under the provisions of the Advocates Act.
He was selected as a Judicial Officer by the High Court of Punjab and
Haryana and he joined Judicial Service and got his licence to practice H
377
I

378 SUPREME COURT REPORTS [1999] 1 S.C.R.
A suspended. During his tenure Magistrate-cum-Sub-Judge 1st Class at
Samrala in Ludhiana District of Punjab State, complaints of bribery and
commission of other misconduct were made against him. Regular
departmental inquiry was conducted against him and the Inquiry Officer
found him guilty of offence punishable under section 5(1)(e) of the Preven-
. tion of Corruption Act, 1947 as well as misconduct unbecoming of a
B Judicial Officer. The State Government accepted the recommendation of
the High Court and dismissed him from service. After the dismissal order,
Respondent No. 1 requested the Chairman of the State Bar Council to
permit him to resume practice as an Advocate which was accepted on
26.7.77 and since that date he has been practicing as an Advocate in the
C Taluk Court at Samrala. This was objected to by members of the Samrala
Bar. The Chairman of the State Bar Council confirmed the earlier order.
Seven members of Samrala Bar including the present appellants filed
Revision Petition before the Bar Council of India which was allowed with
a direction to the State Bar Council to initiate appropriate disciplinary
D proceedings against Respondent no.1. Proceedings under section 35 of the
Advocates Act, 1961 were registered as Disciplinary Case before the ap-
propriate disciplinary committee of the State Bar Council against Respon-
dent No.1. The Disciplinary Case stood statutorily transferred to the Bar
Council of India on the expiry of the period of one year prescribed by law
for finalisation of the case by the disciplinary committee of the State Bar
E Council. The Bar Council of India dismissed the case.

Against the order passed by the Bar Council of India, the appellant-
original complainants have filed the present appeal.

The contention of the appellants was that Respondent No. 1 was
F
guilty of 'misconduct' other than professional misconduct under section
35 (1) of the Act when he was found liable to be dismissed from Judicial
Service on proved misconduct of corruption as at the time when the
complaint was filed against him he was an Advocate on the roll of the State
Bar Council and consequently, he was liable to be proceeded against; and
G that it was not the case of the appellants that Respondent No. 1 should be
proceeded against under section 24-A of the Act.

The contention of Respondent No. 1 was that he had surrendered his
licence to practice in 1965 when he was selected as a Judicial Officer and
H any alleged misconduct committed hy him during his tenure as a judicial
-
B. S. DHINGRA v. M. L. GUPTA 379

.. ~
Officer could not be said to be 'other misconduct' committed by him while
he was an Advocate on the roll of the State Bar Council and therefore,
Section 35(1) was not attracted and the disciplinary committee of the Bar
A

Council had no jurisdiction to inquire into such alleged misconduct; that
only Rule 5 of the Bar Council of India Rules applied to the facts of the
case and once admittedly Section 24-A was out of picture as Respondent
no. 1 had not incurred any disqualification under section 24-A of Chapter
B
III of the Act, there was no alternative for the State Bar Council or the
Bar Council of India to refuse permission to Respondent No. 1 to resume
·"'
~
his practice; and that it was not the case of the appellant • complainants
that Respondent No. 1 had committed any misconduct as an Advocate
after resumption of practice by him since 26.7.77. c
Dismissing the appeal, the Court

HELD: 1. Sub-Section (1) and Clauses (h) to (d) of Sub- Section (3)
of Section 35 of the Advocates Act clearly indicate that punishments
contemplated therein have to be imposed on practising Advocates found D
guilty by the Bar Council ofJJaving i:ommitted misconduct while they were
active practitioners of law. A conjoint reading of the Sub-Sections of
Section 35 leaves no room for doubt that before a complaint is filed under
section 35(1) for invoking the powers of the disciplinary committee of the
State Bar Council for punishing the delinquent Advocate under sub-sec- E
tion. (3) of section 35, the 'professional'· or 'other misconduct' alleged to
have been committed by him must be committed at a time when he is a
practising Advocate whose name is on the roll of the State Bar Council
concerned. (386-D-E; 389-D-E]
F
2. It is obvious that 'professional misconduct' cannot be committed
by anyone who is not practising the profession of 1aw being an Adv'!cate
--~- on the roll of the Bar Council concerned. It is also true that such a person
while practising law might commit any 'other misconduct' which may not
necessarily he 'professional misconduct'. He may commit misconduct not
in his capacity as a professional but in any other capacity. (390-D]
G

In the matter of D, an Advocate of Supreme Court, AIR (1956) SC 102,
-::..:· relied on.

3. Before section 35 can be be pressed in service by any complainant, H
I

380 SUPREME COURT REPORTS [1999J 1 S.C.R.
A the following two requirements of misco11duct have to be alleged and proved
before any disciplinary proceedings can result in punishment of the delin·
quent Advocate· (i) the Advocate must be alleged to be guilty of professional
,... .
or other misconduct, and (ii) such misconduct must have been committed by
him while he was a practising Advocate enrolled as such on the roll of the
B State Bar Council concerned. The second ingredient is conspicuously miss·
ing in the present case. Respondent No. 1 had already surrendered his
licence to practice and hadjoined full time service of Judiciary. It is difficult
to appreciate how he can be treakd to be an Advocate on the roll of the State
Bar Council at the time when he is alleged to have committed the misconduct
in question. Respondent No. 1 might have committed delinquency when he
C was a Judicial Officer but for that he was departmentally tried and punished
and was dismissed from service. But so far as resumption of practice there·
after by Respondent no. 1 is concerned, no misconduct of any type is alleged
against. him by the complainants after he had resumed practice as a profes-
sional after26.7.77. (390-E; F-G; 391-A-C)

D 4. Rule 5 of the Bar Council of India Rules deals with a contin-
gency where an enrolled Advocate ceases to practice by joining other
vocation in life and the procedure to be adopted by him in such a case.
Provisions of Rule 5 leave no room for doubt that when a practising
Advocate ceases to practice, he has to surrender his certificate of
E enrolment in original and when he resumes practice he has to be
returned the certificate of enrolment. During the time he .has suspended
his practice he cannot be said to be acting as an Advocate under the
Act. The moment that happens he will be out of the net of disciplinary
provisions which can be invoked by the State Bar Council or for that
F matter the Bar Council of India in connection with his actions, deeds,
and misdeeds, if any, committed by him while he is not in practice as
an Advocate. Even assuming that the name of such non-practitioner
originally entered on the roll of the State Bar Council remains in
suspense or can be treated as latently existing on the roll, so far as
disciplinary jurisdiction under section 35(1) of the Act is concerned, it
G can never get attracted against him for the misconduct allegedly com-
mitted by him as a non-practising Advocate. It is also not in dispute
that while Respondent no. 1 was permitted to resume his practice after
being dismissed from Judicial Service he could not have been
legitimately refused permission to resume practice as Rule 5 (2) did not
H apply in his case as admittedly he did not incur any disqualification
B. S. DHINGRA v. M. L. GUPTA [ S.B. MAJMUDAR, J.) 381

under section 24-A of Chapter III of the Act as it stood in the Statute Book A
.., in the year 1977. [391-F; 392-D·G]

5. It is the conduct of practising Advocates that is dealt with by Chap·
ter V of the Act which provides for appropriate punishment to be imposed on
such practising Advocates for their alleged misconducts. Chapter V of the
Act in which section 35 is found has nothing to do with alleged misconduct B
of non-practising erstwhile Advocates who might have committed any
such misconduct when they were not practising Advocates. As Respon-
dent no.1 was alleged to have committed misconduct as a judicial Officer
when he was not a practising Advocate and when his n11me on the.roll of
the State Bar Council remained suspended simultaneously with his right
to practice as an Advocate, the complaint filed by the appellants, against
c
Respondent No. 1 for such misconduct was not legally maintainable
under section 35(1) oftbe Act. [394-C-D]

111 the case of Sri M. Abdul Kasim (a Pleader) AIR (1958) A.P. 209,
distinguished. D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2478 of
,_.. 1989.

From the Judgment and Order dated 11.2.89 of the Disciplinary
Committee of the Bar Council of India in B.C.I.T.R.C. No. 75 of 1983. E
B.D. Aggarwala, Davender Gupta, K.K. Misra, Anish Dayal and B.D.
Sharma for the Appellants.

Kapil Sibbal, Ranjit Kumar, Chandra Bhushan Pd. and Ranendra Pd.
Saxena for the Respondents. F
The Judgment of the Court was delivered by
--~

S.B. MAJMUDAR, J This appeal under Section 38 of the Advocates
Act, 1961 (hereinafter referred to as the 'Act') has brought in challenge
the order passed by the disciplinary committee of the Bar Council of India G
in a transferred case whereunder Respondent No. 1 advocate was ex-
onerated of the charge of misconduct levelled against him by the appel-
..--·..--., . lant-complainants. In order to appreciate the grievance of the appellants,
--<:
it is necessary to have a look at the relevant facts leading to these proceed-
ings. H
!
382 SUPREME COURT REPORTS [1999] 1 S.C.R.

A BACK GROUND FACTS:

'Y
Respondent no. 1 was enrolled as an advocate by the Bar Council of
Punjab & 'Haryana under the provisions of the Act in 1963 and he started
his practice as an advocate at Faridkot in the Punjab State. Subsequently,
he was selected as a judicial officer by the High Court of Punjab &
B
Haryana and he joined judicial service in the year 1965 and got his licence
to practise suspended. In the year 1972 Respondent no. 1 was posted as
Judicial Magistrate-cum-Sub-Judge Isl Class at Samrala in Ludhiana Dis- ..
"of
trict of Punjab State. During his tenure, complaints of bribery and commis-
sion of other misconduct were made against him by several persons to the
c High Court of Punjab & Haryana at Chandigarh. After preliminary inquiry
by a Judge of the High Court, a regular departmental inquiry was held
against him. T.he Inquiry Officer found Respondent no. 1 guilty of offence
punishable under Section 5(1)(e) of the Prevention of Corruption Act, 1947
as well as misconduct unbecoming of a judicial officer, though he was
exonerated of three other charges. The High Court of Punjab & Haryana
D
accepted the report and recommended his dismissal from judicial service
to the Government of Punjab. The State Government by its order dated
30.6.77 accepted the recommendation of the High Court and dismissed him k'
from service. Respondent no. 1 unsuccessfully challenged the dismissal
order in Writ Petition before the High Court and thereafter his challenge
E to the dismissal order also failed before this Court when his Special Leave
Petition was dismissed by this Court on 26.3.1979. In the meanwhile, after
the dismissal order, the respondent requested the Chairman of the State
Bar Council, Respondent no. 3 herein, to permit him to resume his practice
as an advocate. The said request was accepted by the Chairman of the State .
t

F Bar Council on 26.7.77. It is not in dispute between the parties that since
that date Respondent no. 1 is practising as an advocate in the Taluk Court
at Samrala wherein earlier he was functioning as a Presiding Judge. Certain
~-
members of the Samrala Bar including its President filed objections dated
21.11.77 against the grant of resumption of licence to practise as made
~
available to Respondent no. 1. The then Chairman of the State Bar Council
G by his order dated 26.7.79 confirmed the earlier order dated 26.7.77
granting resumption of licence to practise to Respondent no. 1. Under
these circumstances, seven members of Samrala Bar including the present
appellants filed Revision Petition No. 14 of 1980 before the Bar Council of '
...,.......
India on 12.4.80. praying for quashing the order passed by the State Bar
H Council. The Bar Council of India by its order dated 25.7.81 set aside the
B.S.DHINGRAv. M.L.GUPTA[S.B.MAJMUDAR,J.] 383

earlier orders of the State Bar Council observing that 'prim a f acie' it A
appears that Respondent no. 1 was guilty of criminal misconduct under
Section 5(1)(e) of the Prevention of Corruption Act and other charges' and
directed that appropriate disciplinary proceedings be initiated by the State
Bar Council against Respondent No. 1. The appellant, along with four
other members of the Bar Association at Samrala, by an application dated
28.8.81, moved the State Bar Council for drawing up of proceedings under
B
Section 35 of the Act. These proceedings were registered as Disciplinary
Case before the appropriate disciplinary committee of the State Bar Coun-
cil against Respondent no. 1. In the said proceedings, evidence was led by
the respective parties and the matter was pending for arguments. However,
in the meantime, period for one year prescribed by law for finalisation of C
the case by the disciplinary committee of the State Bar Council ex-
pired.Consequently, the disciplinary case against Respondent no. 1 stood
statutorily transferred to the Bar Council of India. The Bar Council of
India beard the disciplinary case and it ultimately dismissed the same by
its order dated 11.2.89. It is against the said order that present appeal is D
moved by the appellant-original complainants as afores.aid.

RIVAL CONTENTIONS:

Learned counsel appearing for the appellants in support of the
appeal submitted that Respondent no. 1 was guilty of misconduct and was E
liable to be proceeded against under Section 35 of the Act. He, however,
fairly stated that it is not the case of the appellants that Respondent no. 1
should be proceeded against under Section 24-A of the Act. But it was
submitted that Respondent no. 1 was guilty of 'misconduct' other than
professional misconduct under Section 35(1) of the Act as at the time the F
complaint was filed against him he was an advocate on the roll of the State
Bar Council and consequently was liable to be proceeded against for an
appropriate punishment order as envisaged by Section 35 of the Act and
that the Inquiry Officer wrongly proceeded on the basis that because
Section 24-A was not attracted, nothing more could have been done against
Respondent no. 1. It was vehemently submitted that the words 'other G
misconduct' as contra-distinguished from 'professional misconduct' men-
tioned in Section 35(1) of the Act, clearly cover the facts of the present
case. Respondent no. 1 was unfit to continue as an advocate being guilty
of such other misconduct when he was found liable to be dismissed from
judicial service on proved misconduct of corruption as found by the High H
(

384 SUPREME COURT REPORTS (1999) 1 S.C.R.

A Court as his disciplinary authority at the relevant time. That such a person
should not continue as an advocate and was liable to be punished as per
Section 35 of the Act. It was also submitted that even though the miscon-
duct was committed by Respondent no. 1 while he was not actually prac-
tising as aJl advocate and had surrendered his certificate of .:nrolment, as
B per Rule 5 of the Bar Council, still his name did continue on the roll of
advocates maintained by the State Bar Council. Hence, Section 35(1) got
attracted. The disciplinary committee, therefore, had the jurisdiction to ·
pass appropriate punishment provided by Section 35(3) of the Act.

Learned senior counsel, Mr. Kapil Sibbal, on behalf of Respondent
C no. 1 on the other hand, submitted that Repondent no. 1 who was enrolled
as an advocate since 1963 had surrendered his licence to practise in 1965
on being selected as a Judicial Officer and any alleged misconduct com-
mitted by him during his tenure as a Judicial Officer cannot be said to be
'other misconduct' committed by him while he was an advocate on the roll
D of the State Bar Council and, therefore, Section 35(1) was out of picture.
That only Rule 5 of-the Bar Council of India applies to the facts of this
case and when suspended licence to practise was sought to be got restored,
all that Respondent no. 1 had to show was that he had not incurred any
disqualification under Section 24-A of Chapter III of the Act during the
E period of suspension and once admittedly the said Section 24-A was out
of picture, there was no alternative for the State Bar Council or the Central
Bar Council/Bar Council of India to refuse permission to Respondent no.
1 to resume his practice. That it was not the case of the appellant-com-
plainants that after resumption of practice since 26.7.77, Respondent no. 1
had committed any misconduct as an advocate. Thereafter the past delin-
F quency, if any, committed by Respondent no. 1 as Judicial Officer cannot
entitle the appellant-complainants to invoke Section 35(1) of the Act and
equally the.disciplinary committee of the Bar Council had no jurisdiction
to inquire into such alleged misconduct on the part of Respondent no. 1
and to pass any punishment order against him. It was, therefore, submitted
G that the order under appeal requires no interference.

In view of the aforesaid rival contentions, the following solitary point
arises for consideration "whether the complaint filed by the appellants
under Section 35(1) of the Act was legally maintainable against Respon-
H dent No. 1 on the grounds alleged therein."
~

B. S. DHINGRA v. M. L. GUPTA [ S.B. MNMUDAR, J.) 385

Before we proceed further to consider this solitary point arising for A
<if our decision, it is necessary to note the relevant statutory scheme in the
::;. light of which this controversy has to be resolved. Chapter V of the Act
deals with conduct of advocates. Sub-section (1) of Section 35, on the
interpretation of which in the light of the admitted facts on record hinges
the fate of this appeai deserves to be noted in extenso :
B
"35. Punishment of advocates for misconduct.- {1) Where on receipt
•
)'
of a complaint or otherwise a State Bar Council has reason to
believe that any advocate on its roll has been guilty of professional
or other misconduct, it shall refer the case for disposal to its
disciplinary committee. c
({1-A) The State Bar Council may, either of its own motion or
on application made to it by any person interested, withdraw a
proceeding pending before its disciplinary committee and direct
the inquiry to be made by any other disciplinary committee of that
D
State Bar Council.]

2. The disciplinary committee of a State Bar Council shall fix
a date for the hearing of the case and shall cause a notice therefore
to be given to the advocate concerned and the Advocate-General
of the State. E

3. The dsciplinary committee of a State Bar Council after giving
the advocte concerned and the Advocate- General an opportunity
of being heard, may make any of the following orders, namely :
F
(a) dismiss the complaint or, where the proceedings were
-:>- initiated at the instance of the State Bar Council, direct that the
proceedings be filed;

{b) reprimand the advocate;
G
(c) suspend the advocate from practice for such period as it
'--
may deem fit;
·--<
(d) remove the name of the advocate from the State roll of
advocates. H
386 SUPREME COURT REPORTS (1999) 1 S.C.R.

A 4. Where an advocate is suspended from practice under clause·
(c) of sub-section (3), he shall, during the period of suspension,
be·debarred from practising in any court or before any authority
or person in India.

(5) Where any notice is issued to the Advocate-General under
B sub-section (2), the Advocate-General may appear before the
disciplinary committee of the State Bar Council either in person
or through any advocate appearing on his behalf.

(Explanation. - In this section (Section 37 and Section 38), the
C expressions "Advocate-General" and "Advocate-General of the
State", shall in relation to the Union territory of Delhi, mean the
Additional Solicitor-General of India.)

A mere look at sub-section (1) of the aforesaid section shows that the
D complaint under the said provision must allege that any advocate on the
roll of the State Bar Council has been guilty of professional or other
misconduct. If this is alleged and is ultimately proved then only the dis-
ciplinary committee of the concerned State Bar Council can pass ap-
propriate punishment orders as laid down by Clauses (b) to (d) of
sub-section (3) of Section 35 of the Act. These provisions clearly indicate
--
E that punishments contemplated by them have to be imposed on practising
advocates found guilty by the Bar Council of having committed misconduct,
while they were active practitioners of law. For the purpose of present
discussion, we may assume that learned counsel for the appellants is right
when he contends that even when a practising advocate surrenders his
p licence to practise on being elevated to the bench of the Court on joining
judicial service, his name on the State Bar Council's roll of advocates may
continue but even on that assumption we fail to appreciate how on the facts ......
of the present case the provisions of Section 35(1) could have been invoked
by the complainants. Before any complaint under Section 35 of the Act can
be filed and processed further it must be alleged by the complainant that
G the concerned misconduct for which grievance is made, was committed by
a professional as the requirement of the Section is that the allegation of
misconduct on the part of the concerned advocate must be either
'profesional misconduct' or 'other misconduct. It is obvious that 'Profes-
sional misconduct' cannot be committed by anyone who is not practising
H the profession of law being an advocate on the roll of the Bar Council
B.S.DHINGRAv. M.L.GUPTA(S.B.MAJMUDAR,J.) 387

concerned. It is also true that such a person while practising law might A
commit any 'other misconduct' which may not necessarily be 'professional
misconduct'. For example, if a pract~sing advocate who is enrolled as an
advocate on the roll of the State Bar Council concerned is found guilty of
any misdemeanour or misconduct not necessarily in his capacity as a
professional like beating his neighbour or for rash and negligent driving B
or any other misconduct while not acting as an advocate, still he may have
to face the music under Section 35(1) provided at the time when be
commits such alleged misconduct he is practising law as a 'professional'
duly registered as an advocate on the roll of the concerned State Bar
Council.
c
So far as the types of advocates who can be proceeded against under
Section 35 for alleged profesional or other misconduct are concerned, we
have to turn to the defmition of the term 'advocate' as found in Section
2(1) Clause (a) which defmes an 'advocate' as under.

""advocate" means an advocate entered in any roll under the D
provisions of this Act."

The word "roll" is defined by Section 2( 1) (k) as under :

""roll" means a roll of advocates pepared and maintained under \ E
this Act." \

Section 6 deals with Functions of State Bar Councils. Functions of
the State Bar Council, amongst other, provide :

"(a) to admit persons as advocates on its roll; F

(b) to prepare and maintain such roll;

(c) to entertain and determine cases of misconduct against advo-
cates on its roll;
G
(d) xxxxx xxxxx xxxxx xxxxx

xxxxx xxxxx xxxxx xxxxx

State roll is defined by Section 2(1) Clause (n) as under :- H
388 SUPREME COURT REPORTS (1999) 1 S.C.R.
A ""State roll" means a roll of advocates prepared and maintained by
a State Bar Council under Section 17."

When we turn to Section 17 we find that the State Bar Council maintains
roll of advocates as under :

B "(1) Every State Bar Council shall prepare and maintain a roll of
advocates in which shall be entered the names and addresses of -

(a) all persons who were entered as advocates on the roll of any
High Court under the Indian Bar Councils Act, 1926 (38 of
c 1926}, immediately before the appointed day (including per~
sons, being citizens of India, who before the 15th day of
August, 1947, were enrolled as advocates under the said Act
in any area which before the said date was comprised within
India as defined in the Government of India Act, 1935, and
D who at any time} express an intention in the pre~cribed
manner to practise within the jurisdiction of the Bar Council;

(b) all other persons who are admitted to be advocate on the roll
of the State Bar Council under this Act on or after the
appointed day."
E
Sub-section (2) of Section 17 provides that :

"(2} Each such roll of advocates shall consist of two parts, the first
part containing the names of senior advocates and the second
part, the names of other advocates."
F
How the seniority of advocates mentioned in the roll is to be maintained,
is provided by Section 17(3}. Sub-section (2) clearly lays down that the
'State roll' of advocates would consist of two parts consisting of senior
· advocates and other advocates. These provisions clearly indicate that on
the "State roll" of advocates maintained by the State Bar Council, the names
G of those professionals who are practising law either as 'Sr. Advocates or as
other advocates' have to be mentioned. If a person has already surrendered
his licence to practise and joined full time service of judiciary as has
-
,..
happened in Respondent no. l's case, it is difficult to appreciate how he
can be treated to be an advocate on the roll of the State Bar Council at
H the time when he is alleged to have committed the misconduct in question.
B. S. DHINGRAv. M. L. GUPTA [ S.B. MATMUDAR, J.) 389

~
' "' This conclusion also becomes obvious in the light to Section 35(3) which A
entitles the disciplinary committee of a State Bar Council after giving the
advocate concerned and the Advocate General an opportunity of being
heard, to pass necessary orders of punishment as mentioned in Clauses (b)
to (d) thereof. If any punishment is to be imposed after hearing him, the
disciplinary committee of the Bar Council may either reprimand or
...,.. suspend him from practice or remove his name from the "state roll" of
B
advocates. Clause (d) of sub-section (3) contemplates a major punishment
in respect of the advocate concerned which permanently debars him from
practising while Clause (c) of sub-section (3) of Section 35 provides for
less severe punishment depending upon the facts of the case where the
delinquent advocate concerned can be suspended from practice for a given c
period of time. The effect of suspension from practice as per Section
35(3)(c) is provided by sub-section (4) of the Act namely that during the
period of suspension the advocate concerned be debarred from practising
in any court or before any other authority or person in India but if he is
removed from practice be will he permanently debarred from practising.
D
A .conjoint reading of these sub-sections of Section 35 leaves no room for
··~
doubt that before a complaint is filed under Section 35(1) for invoking the
powers of the disciplinary committee of the State Bar Council for punishing
the delinquent advocate under sub-section (3) of Section 35, the
'professional' or 'other misconduct' alleged to have been committed by him
must be committed at· the time when he is a practising advocate whose E
name is on the roll of the State Bar Council concerned.

Learned council for the respondent was right when he contended
placing reliance upon a judgment of this Court in the matter of D, an
Advocate of the Supreme Court, AIR (1956) SC 102, that the words 'profes- F
sional or other misconduct' would include misconduct committed by an
advocate not in his capacity as a professional but in any other capacity. The
said decision was rendered in the light of Section 10 of the Bar Councils
Act, 1926 which contains pari materia provision dealing with 'professional
or other misconduct' of advocates. Interpreting the pharase 'professional
G
.......... or other misconduct', it was held by this Court as under:-
/

-
"The Indian Legislature by using the Words 'professional or other
misconduct' in Section 10, Indian Bar Councils Act intended to
confer on the Court disciplinary jurisdiction to take action in ciII H
L

390 SUPREME COURT REPORTS [1999] 1 S.C.R.

A cases of misconduct whether in a profe~sional or other capacity
leaving to the discretion of Court to take action only in suitable
cases."

It must be noted that the aforesaid observations were made in the light of
factual matrix in the case wherein an advocate of the Bombay High Court
B is said to have committed breach of Bombay Prohibition Act by consuming
..
.....
illicit liquor. It is obvious that the said misconduct of the advocate was not
in his 'professional' capacity but in 'other' capacity as a responsible citizen
·while he was active practitioner of law. He had not consumed liquor after
ceasing to practise as an advocate. Section 10 of the Bar Councils Act, 1926
C therefore conferred disciplinary jurisdiction on the High Court in such
cases of misconduct of advocates.

It is in the light of the aforesaid facts that the said decision of this
Court was rendered. Therefore, we must proceed on the basis that 'profes-
sional misconduct' as laid down in Section 35(1) of the Act can rope in
D practising advocates who commit either 'professional misconduct' c:ir any k"'

'other misconduct'. Still the moot question remains as to when they should
have committed such a misconduct to be held answerable to the Bar
Council under Section 35 of the Act. The aforesaid decision of this Court
does not throw any light on this moot question.
E
We have, therefore, to decide this question in the light of the scheme
of Section 35. Before Section 35 can be pressed in service by any com-
plainant, the following two requirements of misconduct have to be alleged
and proved before any disciplinary proceedings can result in punishment
of the delinquent advocate.
F
(1) The advocate concerned must be alleged to be guilty of
professional or other misconduct.

(2) Such misconduct must have been committed by him while he
was a practising advocate enrolled as such on the roll of the
G State Bar Council concerned.

The learned advocate for the appellant in the present case is right
when he contends that the first ingredient alleged.is established, as admit-
tedly Respondent no. 1 during the time he was a judicial officer had
H committed a misconduct of being found guilty of the charges of corruption
B. S. DHINGRA v. M. L. GUPTA [ S.B. MAJMUDAR, J.] 391

in the departmental inquiry held by the High Court and which culminated A
into his dismissal from judicial service of the State. It was certainly 'other
misconduct'. However, that will not be an end of the matter for the
appellants. They must further show that this type of other misconduct was
committed by Respondent no. 1 while he was a professional enrolled on
the roll of State Bar Council. That ingredient is conspicuously missing in
•... the present case. Respondent no. 1 might have committed delinquency
B
when he was a Judicial Officer but for that he was departmentally tried
and punished and was dismissed from service on the recommendation of
the disciplinary authority, namely, the High Court of Punjab & Haryana.
But so far as resumption of practice thereafter by Respondent no. 1 is
concerned, no misconduct of any type is alleged against him by the com- c
plainants after he had resumed practice as a professional after 26.7.77. In
this connection, we have to note that under Section 49 of the Act, Bar
Council of India has general power to frame rules. As per Section
49(1)(ah), rules can be framed by the Bar Council of India laying down
"the conditions subject to which an Advocate shall have the right to practise D
and the circumstances under which a person shall be deemed to practise
as an advocate in a Court". In exercise of the said rule making power, the
Bar Council of India has framed rules called Bar Council of India rules.
Chapter III of the said rules deals with conditions for right to practise. Rule
1 lays down that :
E
"Every advocate shall be under an obligation to see that his
name appears on the roll of the State Council within whose
jurisdiction he ordinarily practices'~.

Rule 5 deals with contingency where an enrolled advocate ceasf!s to
practise by joining other vocation in life and the proceedure to be adopted F
by him in such a case. Rule 5(1) with its sub-rules deserves to be noted in
this connection :

"(1) An Advocate who voluntarily suspends his practice for any
reasons whatsoever, shall intimate by registered post to the State G
Bar Council on the rolls of which his name is entered, of such
suspension together with his certificate of enrolment in original.

(2) Whenever any such advocate who has suspended his prac-
tice desires to resume his practice, he shall apply to the Secretary
of the State Bar Council for resumption of practice, along with an H
392 SUPREME COURT REPORTS (1999] 1 S.C.R.
't- ...
A affidavit stating whether he hi.s incurred any of the disqualifica-
tions under Section 24A, Chapter III of the. Act during the period
of suspension.

. (3) The Enrolment Committee of the State Bar Council may

....
order the resumption of his practice and return the certificate to
B him with necessary endorsement. If the Enrolment Committee is
of the view that the Advocate has incurred any of the disqualifica-
tions the Committee shall refer the matter under proviso to Section
26(1) of the Act.

(4) On suspension and resumption of practice the Secretary
c shall act in terms of Rule 24 of Part IX."

The aforesaid provisions of Rule 5 of Chapter III leave no room for
doubt that when practising advocate ceases to practise, he has to surrender
his certificate of enrolment in original and when he resumes practice he
D has to be returned the certificate of enrolment. During the time he has
suspended his practice he cannot be said to be acting as an advocate under
the Act. The moment that happens he will be out of the net of the
disciplinary provisions which can be invoked by the State Bar Council or
for that matter the Bar Council of India in connection with his actions,
E deeds and misdeeds, if any, committed by him while he is not in practice
as an advocate. Even assuming that the name of such non-practitioner
originally entered on the roll of the State Bar Council remains in suspense
or can be treated as latently existing on the roll, so far as disciplinary
jurisdiction under Section 35(1) of the Act is concerned, it can never get
attracted against him for the misconduct allegedly committed by him as a
F non-practising advocate. It is also not in dispute that while Respondent no.
1 was permitted to resume his practice after being dismissed from judicial
service he could not have been legitimately refused permission to resume
practice as Rule 5(2) did not apply in his case as admittedly he did not
incur any disqualification under Section 24-A of Chapter III of the Act. To
G incur disqualification under Section 24-A :

"(a) the person concerned should be convicted of an offence
involving moral turpitude;

(b) he should be convicted of an offence under the provisions of
H the Untouchability (Offences) Act, 1955 (22 of 1955); and
B. S. DHINGRA v. M. L. GUPTA [ S.B. MAJMUDAR, J.) 393
(c) he should be dismissed or removed from employment or A
office under the State on any charge involving moral tur-
pitude.

It is pertinent to note that Clause 'C' of Section 24A was inserted on the
Statute book only in 1993. Respondent no. 1 was allowed to resume B
practice in 1977 when Rule 5 read with the then existing Section 24A did
not cover such a contingency. Though the charge against Respondent no.
1 in departmental proceedings conducted by the High Court was certainly
in connection with an offence involving moral turpitude as he was allged
to be guilty of corruption he could not be said to have been convicted of
such an offence by any criminal act. That is precisely the reason why the C
Jearned counsel for the apellants did not place reliance on Section 24-
A(i}(a) of the Act which was the only relevant provision of Section 24-A
as it then stood. Consequently, under Rule 5 of Chapter III of the Rules,
the State Bar Council could not have refused permission to Respondent
no. 1 to resume his practice in 1977 after he ceased to be a Judicial Officer D
even though he was dismissed from service after departmental inquiry.

It must, therefore, be held that the only provision relied upon by
learned counsel for the appellants against Respondent no. 1 being Section
35(1) is not available as both the requirements of the said sub-section are
not established in the present .case. Hence there was no occasion for the E
State Bar Council or Central Bar Council to proceed further with the
complaint of the appellants against Respondent no. 1. To recapitualate
Section 35(1) can be invoked against an advocate who is on the roll of the
State Bar Council as a practising advocate and who is guilty of professional
or other misconduct alleged to have been committed by him while being F
entitled to practise as an advocate even though misconduct alleged may
not have strictly been committed by him in his professional capacity. If the
name of such an advocate against whom complaint is filed is already
removed as per Section 26A from the roll of the State Bar Council at the
relevant time when the alleged misconduct is said to have been committed
by him, then Section 35(1) gets out of picture qua him even after he G
·~
resumes practice at a later point of time. Section 26-A of the Act gives
power to the State Bar Council to remove the name of the advocate from
the State roll who is dead or from whom a request has been received to
that effect as in the case of Respondent no. 1 when he joined judicial
service. H
394 SUPREME COURT REPORTS (1999] 1 S.C.R.
A It is also to be kept in view that Section 35{1) will have to be read
with Section 33 which states that :

"Except as otherwise provided in this Act or in any other law for
the time being in force, no person shall, on or after the appointed
day, be entitled to practice in any court or before any authority or
B person unless he is enrolled as an advocated under this Act."

Thus, enrolnient as an advocate and right to practise law go hand in
hand. It is the conduct of such practising advocates that is dealt with by
Chapter V of the Act which provides for appropriate punishment to be
C imposed on such practising advocates for their alleged misconducts. Chap-
ter V of the Act in which Section 35 is found has nothing to do with alleged
misco1;1duct of non-practising erstwhile advocates who might have com-
mitted any such misconduct when they were not practising advocates. As
Respondent no. 1 was alleged to have committed misconduct as a judicial
D Officer when he was not a practising advocate and when his name on the
roll of the State Bar Council remained suspended simultaneously with his
right to practise as an advocate, the complaint filed by the appellants
against Respondent no. 1 for such misconduct was not legally maintainable
under Section 35(1) of the Act. There was, therefore, no occasion for the
E disciplinary committee of the Bar Council to consider further question of
imposing any punishment on him as per sub-section {3) of Section 35.

Before parting with. this appeal, it is necessary to refer to a judgment
of the Full Bench of Andhra Pradesh High Court in the case of Sri M.
Abdul Kasim (a Pleader), AIR {1958) AP 209, on which strong reliance
F was placed by learned counsel for the appellants. In that case K. Subba
Rao, C.J., (as he then was) speaking for the Court, had to examine the
disciplinary powers of the High Court under Section 13(f) of Legal Prac-
titioners Act, 1879. The said provision read thus :

"The High Court may also, after such inquiry as it thinks fit,
G suspend or dismiss any pleader or Mukhtar holding a certificate
as aforesaid.

xxxxx xxxxx xxxxx xxxxx

H (f) for any other reasonable cause".
B. S. DHINGRA v. M. L. GUPTA [ S.B. MATMUDAR, J.) 395

The question before the High Court was whether a pleader holding a A
certificate who is said to have abused his position as a judicial Officer
after being appointed as such and was dismissed for taking illegal
gratification and for inefficiency, could be punished by the High Court
under the aforesaid provision. Answering this question in the affirm-
ative, it was held :
B
"A pleader who abused his position as a Judicial Officer and who
was dismissed for taking illegal gratification and for inefficiency,
obviously, shOUld not be allowed to spoil the atmosphere of the
legal profession which it should be the aim of any society to keep
pure and unsullied." C

It is no doubt true that in the case before the Andhra Pradesh High Court
the delinquent pleader while he was Judicial Officer and had ceased to be
a pleader had committed misconduct as a Judicial Officer but after he
ceased to be a Judicial Officer and resumed his practice, he was found D
liable to be dealt with by the High Court under Section 13(t) of the Legal
Practitioners Act. It is trite to observe that Section 13(t) of the said Act
conferred jurisdiction on the High Court to suspend or dismiss any pleader
for any other reasonable cause. The phrase for any other reasonable cause'
is of wide import. Consequently, under the said provision, the High Court
had the power not to allow any such pleader, who is found guilty of any E
misconduct at any point of time to continue his practice as a pleader.

Section 35(1) in the present case is not so widely worded. On the
contrary, it clearly indicates the limited nature of disciplinary jurisdiction
available to the Bar Council's to punish practising advocates on their roll F
if they have committed professional or other miswnduct while practising,
__ +- as such. Consequently, the aforesaid decision of the Andhra Pradesh High
Court rendered in the light of an entirely different statutory scheme, cannot
be of any avail to learned counsel for the appellants.

The decision impugned in this appeal dismissing the complaint of the G

- appellant is, therefore found to be well sustained and calls for no inter-
ference. The appeal accordingly fails and is dismissed. There will be no
order as to costs.

AT. Appeal dismissed.